Asian American voters entitled to interpreters of their choice under Voting Rights Act

The Asian American Legal Defense and Education Fund (AALDEF) applauded the Fifth Circuit Court of Appeals decision last week that affirmed the district court ruling that the Texas law, which requires interpreters to be registered voters, violates the Voting Rights Act (VRA), which protects the right of voters to select persons of their choice to assist them at the polls. The Fifth Circuit decision also affirmed the district court's finding that the plaintiff organization, OCA-Greater Houston, had satisfied its standing requirement.

Jerry Vattamala, AALDEF Democracy Program Director, said: "This is a great victory for Asian American voters and all LEP voters across the state of Texas. The Fifth Circuit affirmed that the Voting Rights Act applies throughout the entire voting process, and the rights afforded to voters under the Act, cannot be impaired by any state or county. This decision was also a victory for all voting rights advocates, because it clarified and protected the standing requirements needed to bring suit. We look forward to continuing our work protecting voters in Texas and throughout the country."

In his 18-page opinion in OCA-Greater Houston v. State of Texas, U.S. Circuit Judge Patrick Higginbotham of the 5th Circuit affirmed the district court ruling that Texas Election Code 61.033, which "flatly contradict[s] Section 208" of the VRA by "arbitrarily requiring the interpreter to be registered to vote in the county where assistance is being sought." The court also found that OCA had satisfied its standing requirement because the Texas law "perceptibly impaired" OCA's ability to "get out the vote" among its members, caused an injury-in-fact to OCA, and the injury was fairly traceable to the State and Secretary of State.

Margaret Fung, AALDEF Executive Director, said, "State laws must not be used to restrict voter access for communities of color, including Asian American citizens with limited English proficiency. The enforcement of the Voting Rights Act is still necessary to ensure that Asian Americans can participate fully in the political process."

Asian American voters benefit from section 208 because most jurisdictions in Texas are not required to provide Asian-language interpreters under the Voting Rights Act. Section 208 allows LEP voters to be assisted by their friends or family members inside the voting booth, regardless of the citizenship or voter registration status of the assistor.

Texas had argued that the protections of the Voting Rights Act only applied inside the voting booth, in the presence of the ballot - a contention the court disagreed with. The court did vacate the injunction that was issued by the district court because it was too broad, and remanded the case back to the district court to create a narrower injunction if necessary.

AALDEF filed the lawsuit on August 6, 2015, on behalf of OCA-Greater Houston, a nonprofit organization, and the late Mallika Das, an Indian American voter denied language assistance from her son in the 2014 midterm elections because he was not a registered voter in that county.

On behalf of OCA-Greater Houston, Deborah Chen said: "As an organization working to civically and politically empower Asian Americans here in Texas, we are pleased to see that this significant barrier to voting for LEP Asian Americans has been removed. Empowered by this decision, we will continue our work to ensure that more Asian Americans in Texas are civically engaged."

While plaintiff Mallika Das passed away in the course of the lawsuit, Saurabh Das, her son, joined AALDEF in applauding the decision: "I am happy that the court has sided with LEP Asian American voters and protected their rights under federal law to receive assistance from persons of their choice. I hope that this decision will allow more LEP Asian Americans to vote for many elections to come. My mother would have been pleased to see this outcome."

Fish & Richardson P.C. was pro bono counsel in this lawsuit. David Hoffman, a principal at the law firm, said, "Fish & Richardson was honored to be able to help the Plaintiffs and AALDEF with this case. We hope that the decision will stand as a worthy memorial to Plaintiff Mallika Das, who tragically passed away during the case."

AALDEF will conduct its Asian American Exit Poll and Poll Monitoring Project on November 7, 2017 in New York City and Boston for the mayoral elections, and in New Jersey and Virginia for the gubernatorial elections. Volunteers can sign up here.